                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                October 29, 2014 Session

                                  IN RE: JUANITA W.

                   Appeal from the Criminal Court for Knox County
                         No. 100392    Steven Sword, Judge


              No. E2013-02861-COA-R3-JV-FILED-JANUARY 29, 2015


Juanita W. (“the Juvenile”) appeals an order of the Criminal Court for Knox County (“the
Criminal Court”) finding her delinquent by committing the act of aggravated assault pursuant
to Tenn. Code Ann. § 39-13-102(a)(1)(B). We find and hold that the required element of
bodily injury was not proven, and we, therefore, reverse the Criminal Court’s order finding
the Juvenile delinquent and dismiss the case.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and J OHN W. M CC LARTY, J., joined.

Mark E. Stephens, District Public Defender, and Christina Kleiser, Assistant Public
Defender, Knoxville, Tennessee, for the appellant, Juanita W.

Robert E. Cooper, Jr., Attorney General & Reporter, and John H. Bledsoe, Senior Counsel,
for the appellee, State of Tennessee.

                                         OPINION

                                        Background

               The State of Tennessee (“the State”) filed a petition alleging that the Juvenile
was delinquent for committing the act of aggravated assault pursuant to Tenn. Code Ann. §
39-13-102(a)(1)(B) during an incident that occurred on July 1, 2012. The State’s petition
specifically charged Tenn. Code Ann. § 39-13-102(a)(1)(B) and also alleged:
       On July 1, 2012, at approximately 9:10 p.m., [the Juvenile] was involved in a
       physical confrontation with her room mates at [street address]. [The Juvenile]
       refused to obey Officer Thurman’s commands as she screamed and attempted
       to break down the door where her foster parents and sister were located. [The
       Juvenile] then retrieved a silver knife with a black handle and came downstairs
       in a very aggressive manner, with the knife held upright, and refused to drop
       the knife. Officer Thurman was in fear for the safety of the foster parents and
       sisters, as well as for himself.

              The case was tried before a magistrate judge in the Juvenile Court for Knox
County (“the Juvenile Court”) and, after trial, an order was entered finding that the Juvenile
had committed the delinquent act of aggravated assault pursuant to Tenn. Code Ann. § 39-
13-102(a)(1)(B). The magistrate judge’s findings, recommendations, and order then were
confirmed by the judge of the Juvenile Court.

               The Juvenile appealed the Juvenile Court’s order to the Criminal Court where
the case was tried de novo in November of 2013. At trial Officer Thomas Adam Thurman,
a patrol officer with the Knoxville Police Department, testified about the incident of July 1,
2012. Officer Thurman, who was on patrol alone at the time, received a call on the evening
of July 1, 2012 around 9 or 10 p.m. and in response to the call went to the house where the
incident soon occurred. When he arrived at the house, Officer Thurman was met by a
neighbor “who reported to [him] that there was something drastic going on in - - in that home
right there that [Officer Thurman] was responding to . . .,” which Officer Thurman found to
be “atypical,” and which “kind of raised a flag to [him] right there at the get-go.”

              Officer Thurman knocked on the door of the house and after a few minutes was
admitted by the Juvenile. Officer Thurman testified that the Juvenile:

       seemed to be surprised that I was there and was noticeably agitated like she
       had either been in or was about to be in a physical confrontation. I figured
       verbal at least. So [the Juvenile] looked at me, opened the door, and then
       turned and immediately sprinted back into the interior of what I found to be the
       living area and rounded a corner and got out of my sight real quick.

Officer Thurman followed the Juvenile “as she went around the corner and then went down
a big stairwell into a basement.” He lost sight of her for two or three seconds, and as he went
around the corner, Officer Thurman saw that the Juvenile was at the “base of the stairs and
was in a battle with the door there.” Officer Thurman described the stairwell stating: “It was
real narrow, real tight, not much moving room, but [the Juvenile] was in a verbal argument



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with whoever was behind the door, and I didn’t know at the time who it was or what was
going on behind that door at the base of the stairs.”

                Officer Thurman attempted to speak to the Juvenile from his position at the top
of the stairs, but she did not respond to him. Officer Thurman testified:

       [The Juvenile] was in a big time argument with whoever was behind that door,
       and I remember her saying some things to the nature of that she was going to
       get them, she was going to do them, that kind of stuff. So there was some
       threats going on back and forth behind - - I couldn’t hear what was being said
       from the other side of the door, but I could hear that there was some
       communication going on there.

Officer Thurman further described that he:

       pretty much eased down the stairs immediately, and I got to about the third
       step from the bottom or so where I was still at a position overlooking [the
       Juvenile], and I was trying to get her attention. I was trying to, you know, get
       her to look at me and respond to me. But she was - - had completely tuned me
       out or never even acknowledged that I was there, one or the other. I don’t
       know, but either way, I didn’t get her attention.

               Officer Thurman testified that he was unable to get the Juvenile’s attention
until he went to the base of the stairs and “physically kind of moved her away from the door,”
and put his “face in between her face and the door . . . .” Officer Thurman instructed the
Juvenile to go back up the stairs so he could figure out what was going on behind the door,
and eventually the Juvenile did retreat back up the stairs.

              After the Juvenile went back up the stairs, Officer Thurman turned his attention
to the door. He stated that he “could tell that there were multiple people back there, but it
kind of sounded like there was an argument going on behind that door too.” Officer
Thurman testified that at that point he was trying to ascertain if he needed to kick the door
down or if he needed to keep his attention on the Juvenile. Officer Thurman explained:

       The people inside the room opened the door for me slightly, and I didn’t want
       to go busting in there, ’cause I - - I was already at a big disadvantage as it was.
       So I - - I kept the door just slightly pulled open so I could see in there, . . . I
       kept my hand on the doorknob so [the people behind the door] couldn’t come
       out.



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           Officer Thurman testified that after “maybe eight seconds” during which he
was communicating with the people behind the door, he

       heard, you know, a very distinct noise from upstairs. . . . It was a knife, you
       know, either sliding - - a knife blade against wood or a table or something. I
       heard that distinct noise. It’d either come out of a butcher’s block or, you
       know, slid off of a table; but as soon as I heard that, you know, I knew that I
       was in trouble.

Officer Thurman testified that next:

       Maybe a fraction of a second as I’m turning my attention back up to the upper
       landing, [the Juvenile] comes around the corner, and, you know, she just got
       that knife in her hand and coming down through there like she’s coming down
       the gauntlet ready to do whatever. . . . She was holding [the knife] in an
       upright position, coming down through there wielding that thing. . . . [S]he was
       kind of, you know, cantering down the stairs, but I mean, you know, all I could
       see is this knife.

Officer Thurman described the knife stating “it was about eight or 10 inches total, something
like that, but it had a silver blade and a black handle.”

              Officer Thurman testified about what happened next stating:

       Well, as soon as I seen her, you know, I - - I tried to play the situation down
       some, and just tell her, “Hey, stop that,” you know. “Put that down. Stop
       that.” I - - you know, I dropped my voice down, you know, I guess to see if
       that would help, but it didn’t. So she kept coming down there, and it was - -
       I mean, the landing was only probably four by four, maybe. So I knew if she
       was going to be down in there with me, that knife was going to be down there
       with us too. So, I mean, I felt pretty fearful that - - well, actually, I just knew
       I was going to get stuck. I just didn’t know how bad it was going to be. As
       she was coming down through there, I tried to tell her to drop it, but she
       wouldn’t. . . . I made repeated commands. . . . Probably, I don’t know, eight
       or ten commands as she’s coming down them steps. . . . [A]s I kept giving
       commands, my voice raised back up. I think that’s pretty evident on the audio
       recording that I - - I mean, I escalated my voice to the point where I was
       screaming.




                                               -4-
The Juvenile did not respond to Officer Thurman’s commands, but kept coming down the
stairs with the knife out.

             Officer Thurman thought about using his handgun. He stated that he began to
draw his gun and “got it about two or three inches out of the holster . . . .” He stated:

      [F]or whatever reason, I don’t know, I just remember thinking that if I use - -
      if I don’t hesitate and I move quickly, I might be able to get my Taser, that I’m
      probably going to get stuck, but I won’t have to shoot her, and I just - - things
      happened so fast, but when you’re thinking about that stuff, it - - it - - you
      actually think about those things really slowly, and you - - you diagnose - - at
      least I do. I diagnosed the options that I had, and I went with the Taser, and
      it worked, and we’re all here today so . . .

Officer Thurman further explained:

      I used the Taser system on her, the Taser weapon system. I missed it on the
      first go, and - - or got it out of the - - it happened so fast. You know, I got it
      out on the second attempt, and I was able to, you know, deploy it from the belt
      area, and I got a good - - I got a good hit, a good spread on her, and she folded
      over on the stairs and kind of dropped - - dropped the knife down, and it hit me
      in the leg, and I put my foot on the knife, and that was that.

               Gave her a standard deployment with the Taser. She immediately
      started to get back up, and I gave her another deployment, and she started
      apologizing, saying she was, “Sorry, sorry, sorry.” And then at that point in
      time I finally had a partner arrive at the top of the stairs. They were trying to
      communicate with me. I keyed up at some point on the shoulder mike so they
      could - - everybody could hear the commotion going on, ’cause I knew they
      weren’t going to be able to hear me. So I keyed this up and left it open, you
      know, for two or three seconds during that initial conversation at the base of
      the stairs. So I knew I had a bunch of people coming, you know, irregardless
      of whether they heard me on the actual microphone or not, and then one of my
      - - it was actually my sergeant that got there first and came down the stairs and
      put handcuff - - hand restraints on [the Juvenile].

               Officer Thurman was asked about when the Juvenile dropped the knife and if
the knife cut his clothes or his skin, and he stated:




                                             -5-
       No. Just kind of hit me in the leg and fell on the floor, and I just stepped on
       it. She tried to get back up after the first evolution, and - - so I wanted to have
       my foot on it, ’cause I still had my other hand on the doorknob holding it too.

               Officer Thurman testified that after the Juvenile was put in restraints: “I
remember saying something to her, but she was really agitated at me at that point. So I just
let another sergeant, you know, escort her up the stairs and out. I didn’t really say anything
after that.” Officer Thurman agreed that the Juvenile was one of the strangest juveniles he
ever had arrested and stated: “she was like extremely agitated.” He stated: “it’s troublesome
to sit up here and think to myself that I almost used my weapon on a - - . . . 14-year-old . . .
. That’s troublesome.” He stated that he would “classify that as an extreme situation,”
because he had “not had to almost use [his] weapon on any other juvenile.”

               Both sides put on expert proof at trial on the issue of whether the Juvenile was
able to form the mens rea for aggravated assault. After trial, the Criminal Court entered its
order on November 25, 2013 finding and holding “beyond a reasonable doubt that the
juvenile is delinquent and in need of treatment and training by committing the delinquent act
of Aggravated Assault as charged in the petition.” The Juvenile appealed the Criminal Court
order to this Court.

                                          Discussion

               We restate the dispositive issue on appeal as: whether the Criminal Court erred
in finding the Juvenile delinquent by the act of aggravated assault pursuant to Tenn. Code
Ann. § 39-13-102(a)(1)(B) when the required element of bodily injury was not proven.

              When dealing with a juvenile delinquency case, we apply the standard of
review as discussed in State v. Roberts as follows:

               When a defendant challenges the sufficiency of the evidence, an
       appellate court’s standard of review is whether, after considering 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. Jackson
       v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State
       v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). In
       determining the sufficiency of the evidence, this Court should not re-weigh or
       re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
       Crim. App. 1990). Nor may this Court substitute its inferences for those
       drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102,
       105 (Tenn. 1999); Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859

                                               -6-
       (1956). Questions concerning the credibility of the witnesses, the weight and
       value of the evidence, as well as all factual issues raised by the evidence are
       resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This Court must
       afford the prevailing party the strongest legitimate view of the evidence
       contained in the record, as well as all reasonable inferences which may be
       drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
       Because a verdict of guilt against a defendant removes the presumption of
       innocence and raises a presumption of guilt, the convicted criminal defendant
       bears the burden of showing that the evidence was legally insufficient to
       sustain a guilty verdict. Id.

State v. Roberts, 106 S.W.3d 658, 662 (Tenn. Ct. App. 2002). As our Supreme Court also
has stated:

       The child is afforded a number of constitutional and statutory rights and
       procedures in delinquency proceedings. See Tenn. Code Ann. §§ 37-1-120,
       -124 (2005). These include the right to due process, the right to counsel, the
       right to introduce evidence, the right to cross-examine witnesses, and the
       privilege against self-incrimination. Tenn. Code Ann. §§ 37-1-126, -127
       (2005).

State v. Rodgers, 235 S.W.3d 92, 95 (Tenn. 2007).

               Before we address the issue on appeal, we note that the record reveals, and the
parties, the Criminal Court, and this Court all have acknowledged, that Officer Thurman did
a commendable job during the very dangerous incident upon which this case is based.
Officer Thurman’s professionalism and ability to think clearly during this life-threatening
incident resulted in a resolution that avoided injury or death. The outcome of the incident
could have been very different except for Officer Thurman and his actions.

              Unfortunately, as the parties agreed during oral argument before this Court, the
State charged the wrong statutory section in its petition. It was suggested that perhaps this
error occurred as a result of changes to the statutory scheme that had occurred approximately
one year prior to the filing of the petition. The error of charging the wrong statutory section,
however, never was corrected, and the Criminal Court found the Juvenile delinquent “by
committing the delinquent act of Aggravated Assault as charged in the petition.”

              The statutory section charged in the petition, Tenn. Code Ann. § 39-13-
102(a)(1)(B), provided, in pertinent part:



                                              -7-
       39-13-102. Aggravated assault.

       (a)(1) A person commits aggravated assault who:

                                             ***

       (B) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:
             (i) Causes serious bodily injury to another; or
             (ii) Uses or displays a deadly weapon.

Tenn. Code Ann. § 39-13-102(a)(1)(B) (Supp. 2011).

       39-13-101. Assault. – (a) A person commits assault who:

       (1) Intentionally, knowingly or recklessly causes bodily injury to another;

Tenn. Code Ann. § 39-13-101(a)(1) (2010).

               Thus, in order to prove aggravated assault pursuant to Tenn. Code Ann. § 39-
13-102(a)(1)(B) as charged in the petition, the State was required to prove, among the other
necessary elements, that the Juvenile caused bodily injury to another. The record on appeal
reveals, and the parties do not dispute, that the Juvenile did not cause bodily injury to another
during the incident that occurred on July 1, 2012. As such, the State failed to prove that the
Juvenile was delinquent by committing the act of aggravated assault pursuant to Tenn. Code
Ann. § 39-13-102(a)(1)(B) as charged in the petition.

               The State argues on appeal that even though it pled the wrong statutory section
when it pled Tenn. Code Ann. § 39-13-102(a)(1)(B), everyone knew what was being tried.
The State argues that the Juvenile had notice, despite the statutory charge actually cited in
the petition, that she was being charged with aggravated assault by intentionally or
knowingly causing Officer Thurman to reasonably fear imminent bodily injury by her using
or displaying a deadly weapon. The parties, however, cited us to no juvenile cases involving
an issue similar to the one now before us, and we have been unable to locate any after
researching the issue. We believe it is critically important in our resolution of this case that
the Criminal Court found the Juvenile delinquent in its order “of Aggravated Assault as
charged in the petition.” (emphasis added). The statute charged in the petition was Tenn.
Code Ann. § 39-13-102(a)(1)(B).

               The State specifically charged Tenn. Code Ann. § 39-13-102(a)(1)(B) in its
petition, and the Criminal Court found the Juvenile delinquent “by committing the delinquent

                                               -8-
act of Aggravated Assault as charged in the petition.” Because it is undisputed that the State
failed to prove bodily injury as required by Tenn. Code Ann. § 39-13-102(a)(1)(B), we are
constrained to reverse the Criminal Court’s order and dismiss this case.

                                        Conclusion

              The judgment of the Criminal Court is reversed, this case is dismissed, and this
cause is remanded to the Criminal Court for collection of the costs below. The costs on
appeal are assessed against the appellee, the State of Tennessee.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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