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


                                       -2-
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

                                        -3-
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

                                         -4-
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.



                                        -5-
       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


                                        -6-
       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.

                                        -7-
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

                                        -8-
      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)


                                        -9-
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

                                       -10-
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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