             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                                MAY 1999 SESSION
                                                      FILED
                                                         July 8, 1999

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )              Appellate Court Clerk
                                     )    C.C.A. NO. 02C01-9710-CC-00420
             Appellee,               )
                                     )     GIBSON COUNTY
VS.                                  )
                                     )     HON. DICK JERMAN, JR.,
JAMES HYDE,                          )     JUDGE
                                     )
             Appellant.              )     (Aggravated Robbery, Aggravated
                                           Rape, Reckless Endangerment
                                           & Unlawful Weapon Possession)



FOR THE APPELLANT:                        FOR THE APPELLEE:


GERALD S. GREEN                           PAUL G. SUMMERS
147 Jefferson Ave., Suite 404             Attorney General & Reporter
Memphis, TN 38103
      (On Appeal)                         R. STEPHEN JOBE
                                          Asst. Attorney General
JESSE H. FORD, III                        John Sevier Bldg.
P.O. Box 1625                             425 Fifth Ave., North
Jackson, TN 38302                         Nashville, TN 37243-0493
       -and-
DONNIE W. KNOTT                            CLAYBURN L. PEEPLES
P.O. Box 547                               District Attorney General
Milan, TN 38358
       (At Trial)                          TED NEWMAN
                                           Asst. District Attorney General
                                           110 South College St., Suite 200
                                           Trenton, TN 38382




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                         OPINION



               The defendant was convicted of aggravated robbery, aggravated rape,

reckless endangerment, and unlawful possession of a weapon and was sentenced as a

Range I standard offender to an effective sentence of twenty-three years in the

Tennessee Department of Correction. He now appeals, arguing that he was placed in

double jeopardy by being tried as an adult in criminal court after participating in a juvenile

transfer hearing that was essentially a delinquency hearing. He also complains that the

police officers lacked probable cause for a warrantless search and seizure and that their

investigatory conduct “shocks the conscience.” Finding no merit to the defendant’s

arguments, we affirm.



               The record on appeal contains only the technical record and the transcript

from the juvenile transfer hearing, which reveals the following. A Trenton church daycare

provider was robbed and raped at gunpoint one afternoon at work. After the incident, the

victim summoned the Trenton police authorities and described her attacker as a very tall,

thin black man wearing a red and black “Bulls” jacket. Because her attacker wore a ski

mask during the incident, she could not identify his face. However, because her attacker

forced her to perform oral sex on him, she described his genital area, stating, “He was

long, little hair, a lighter color there.”



               The victim was taken to the hospital where a rape kit and pelvic examination

was performed. Around the same time, an anonymous person called the Trenton police

and said that the perpetrator had fled to Timmy Hyde’s residence, which was a short

distance from the crime scene. Officer William Sanders went to the residence and

knocked on the front and back doors for ten minutes, but no one answered. A short time



                                              2
later, Officer Sanders learned that after he had left the Hyde residence, two other police

officers had stopped and released a vehicle in which the sixteen-year-old defendant, a

relative of Timmy Hyde, was riding. Officer Sanders returned to the Hyde residence,

where he talked with Tommy Hyde, the defendant’s uncle, who volunteered to find the

defendant and bring him to the police department.



              Later, the defendant, accompanied by his relatives, arrived at the police

department. Officer Sanders obtained permission to search the Hyde residence, which

uncovered a red and black “Bulls” jacket matching the victim’s description.           The

defendant agreed to submit to a blood sample for DNA analysis. Because of the nature

of the victim’s descriptions, Officer Sanders asked the defendant to accompany him into

the bathroom and show him his genital area.          According to Officer Sanders, the

defendant voluntarily consented. In Officer Sanders’ assessment, the defendant’s penis

was “long,” as the victim had described. The DNA comparison of the defendant’s blood

sample with male cells taken from the victim’s vagina produced a four-probe match that

would have a 1 in 638,000,000 chance of occurring randomly in the black population.



              Based on this and other evidence presented at the hearing, the juvenile

court judge found that the statutory grounds for transferring the defendant to criminal

court existed. The case then proceeded to indictment and ultimately a jury trial, where

the defendant was convicted as charged.



              The defendant first argues that the juvenile transfer hearing was essentially

a trial on the merits of the delinquency petition against the defendant and that when he

was tried as an adult in criminal court, he was placed in double jeopardy. As support for

this conclusion, the defendant asserts that because the juvenile court found at the



                                            3
conclusion of the transfer hearing that the offenses were committed in an aggravated

manner, the court necessarily determined that the offenses were actually committed and

thus determined his guilt.



              According to the transfer hearing transcript, the juvenile court judge

enumerated the factors under T.C.A. § 37-1-134 he must consider in determining whether

the State could try the defendant as an adult in criminal court. One of these factors, the

juvenile court judge stated, is whether “the alleged offense was committed in an

aggravated pre-meditated manner.” The juvenile court judge later stated, “I could restate

on the record what I have just gone over [the § 37-1-134 factors], but I do specifically find

in my docketing that each of those grounds of 37-1-134 were met at today’s hearing.”



              A review of § 37-1-134 reveals that the juvenile court judge misspoke; the

applicable factor to be considered is not whether the defendant committed the offense

in “an aggravated pre-meditated manner,” but whether he committed the offense in “an

aggressive and premeditated manner.” T.C.A. § 37-1-134(b)(4). Even so, we fail to

discern how the juvenile court judge’s finding necessarily constitutes a finding of guilt so

as to implicate double jeopardy concerns, as the defendant contends. The record reflects

that the juvenile court judge repeatedly acknowledged that the sole purpose of the

transfer hearing was to determine whether the defendant should be tried as an adult.

Never did the judge suggest that based on the evidence, he found the defendant to be

delinquent or guilty; rather, he specifically limited his review of the evidence in context of

determining “whether or not there are reasonable grounds to believe that the child

committed the delinquent act as alleged,” as required by § 37-1-134(a)(4)(A). Thus,

contrary to the defendant’s argument, jeopardy did not attach in the juvenile transfer

hearing, and the defendant’s trial as an adult, therefore, did not twice place him in



                                              4
jeopardy. State v. Davis, 637 S.W.2d 471, 473 (Tenn. Crim. App. 1982)(where court

simultaneously found that “reasonable grounds to believe” an offense had been

committed and that the defendants were delinquent, jeopardy attached; but had the court

found only “reasonable grounds” without a finding of guilt, “we would have no hesitancy

in saying that double jeopardy did not attach”).



              Next, the defendant contends that because the reliability of the anonymous

informant cannot be assessed, the police officers did not have probable cause for the

“warrantless search and seizure” of the defendant’s groin area. The defendant also

contends that the police officer’s personal assessment of the size of the defendant’s

genitalia cannot give rise to “the probable cause necessary for further investigation and

prosecution.” The limited record on appeal contains no indication that the defendant ever

raised this issue in the trial court. Because this issue was not previously litigated, it has

been waived. See, e.g., State v. Lunati, 665 S.W.2d 739, 749 (Tenn. Crim. App. 1983).

Even so, contrary to the defendant’s claim that Officer Sanders “forced” him to “exhibit

his phallus,” the limited record before us indicates that the defendant voluntarily

consented. Further, the defendant cites no authority that “probable cause” is needed to

merely investigate a suspect of a crime when the suspect voluntarily supplies authorities

with incriminating evidence. The defendant’s contentions lack merit.



              Finally, the defendant asserts simply that the Trenton police department’s

investigation “shocks the conscience” and that the “search which began this investigation

was humiliating and intrusive.” The defendant also claims, “The whole prosecution was

based on the fabrication of the Trenton Police.” The defendant never specifies what this

“fabrication” might be. Because of the conclusive nature of the defendant’s assertions

and the lack of authoritative citations, this issue is waived. Rules of the Court of Criminal



                                             5
Appeals of Tennessee 10(b). Even so, because nothing in the record supports the

defendant’s bald assertions, this issue lacks merit.



             Finding no merit to the defendant’s arguments, the judgments are affirmed.




                                                _______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
JOE G. RILEY, Judge



______________________________
THOMAS T. W OODALL, Judge




                                           6
