          IN THE COURT OF APPEALS OF TENNESSEE
                      AT NASHVILLE
                                                                FILED
                                        )
                                                                 August 20, 1999
                                        )      Williamson Circuit
IN THE MATTER OF:                       )      No. II-152-698 Cecil Crowson, Jr.
                                        )                     Appellate Court Clerk
WAYNE H.,                               )      Appeal No.
a child under the age of 18 years.      )      01A01-9807-CV-00383
                                        )
                                        )

                        CONCURRING OPINION

      I concur with the court’s conclusion that the evidence is sufficient to support
the trial court’s adjudication that Wayne H. committed a delinquent act beyond a
reasonable doubt. However, I have prepared this separate opinion to address the
standard of review applicable to appeals from adjudications of delinquency. In my
view, these appeals are governed by Tenn. R. App. P. 13(d).


      The concepts of “burden of proof” and “standard of review” are quite different.
The concept of “burden of proof” identifies the party who must prove the affirmative
of an issue and the required degree of proof. On the other hand, the concept of
“standard of review” refers to the strictness or intensity with which an appellate court
will evaluate a trial court’s actions. Thus, “burden of proof” relates to the obligation
of the parties, while “standard of review” relates to the obligation of the appellate
courts.


      The burden of proof in delinquency cases is spelled out in Tenn. Code Ann. §
37-1-129(b) (Supp. 1998). This statute requires a person who files a petition alleging
that a child is delinquent to prove beyond a reasonable doubt that the child
“committed the acts by reason of which the child is alleged to be delinquent.” Thus,
the person filing the petition has the burden of producing evidence and must produce
sufficient evidence to persuade the finder-of-fact beyond a reasonable doubt that the
child has committed a delinquent act.




      Appeals from a trial court’s adjudication of delinquency are governed by Tenn.
Code Ann. § 35-1-159(g) (Supp. 1998) which simply states that these appeals will be
governed by the Tennessee Rules of Appellate Procedure. The standards by which
appellate courts review lower courts’ findings of fact are found in Tenn. R. App. P.
13. The review of findings of fact by a trial judge sitting without a jury is governed
by the preponderance of the evidence standard in Tenn. R. App. P. 13(d); while the
review of findings of guilt in criminal cases is governed by the beyond a reasonable
doubt standard in Tenn. R. App. P. 13(e). It seems evident Tenn. R. App. P. 13(e)’s
standard of review is inapplicable to appeals from delinquency adjudications because
Tenn. Code Ann. § 37-1-133(a) (1996) states that an adjudication of delinquency is
not equivalent to a criminal conviction.


      An adjudication that a child is delinquent is a conclusion based on the facts as
found by the finder-of-fact. Thus, if the trial court is the finder-of-fact, then we must
first review each of its findings of fact to determine whether they are supported by a
preponderance of the evidence. After we have determined which of the findings of
fact are supported by a preponderance of the evidence, then we must determine
whether the party with the burden of proof provided sufficient evidence to support
the conclusion that the child committed a delinquent act beyond a reasonable doubt.




         Wayne H. was accused of carrying a knife to school which could be a
delinquent act under Tenn. Code Ann. § 39-17-1309(b) (1997) which provides that
carrying weapons on school property with the intent to go armed is a Class E felony.
The trial court found (1) that Wayne H. was found on school property with a knife in
his possession, (2) that he admitted he had a knife in his possession on the school bus
several days earlier, and (3) that he brought the knife to school to “impress” people
because he was a new student at the school. These facts, as found, support the trial
court’s conclusion that Wayne H. committed a delinquent act beyond a reasonable
doubt.


                                        ____________________________
                                        WILLIAM C. KOCH, JR., JUDGE




                                           -2-
