# FILED
August 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE MATTER OF ) WAYNE H. ) Appeal No. ) 01-A-01-9807-CV- 00383 ) ) Williamson C

ircuit ) No. II-152-698

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, Tennes see 37065-0068 ATTORNEY FOR APPELLANT

PAUL G. SUMMERS Attorney General & Reporter DARYL J. BRAND Associate Solicitor General 425 Fifth Avenue No

rth Nashville, Tennessee 37243 ATTORNEYS FOR STATE OF TENNESSEE

AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE-2- 

## O P I N I O N
In April of 1998 Appell ant, Wayne

H. was a fourteen year old child enrolled in the William

son 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 D ee Dee Wallace Center, arranged for him to live with his maternal grandmother in Williams on Coun ty. Upon moving to his grandmother's home he was enrolled in Williamson Co unty's Page Mid dle School in special

education class for children with behav

ioral problems.

On April 22, 1998, three days after enrolling in Page Sc

hool, Mrs. Marty Hasel den, Assistant Principa l, was inform

ed that Wayne

had been see n displa ying a poc ket knife in the lunchroom. Page Middle School had a "zero tolerance" policy regardi

ng weapons at school.In Mrs. Haselden's office Wayne confirmed

th at he had a knife and gave it to her. He assert

ed 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 tha

t she had heard that t

wo days earlie

r, onhis first

day at Page Middle School, he had been displaying a knife o n th e school bus. Way ne admitted that he also had a knif

e on tha t day and said that he had br ought it to school to impress people becaus e he was new a t the school. He further acknowledged that he knew it was wrong to have a knife i n h is possession at school.

After the Page Schoo l incident, Way ne H. was sent to t

he Alternative Learning Center which is located in the same building

as the William

son County JuvenileDetention Center. The ALC is a fa

cility for conti

n uing the education of students who have bee

n suspended from school for unruliness o r sim ilar problems. Wayne H.'s

behavior at ALC was less than satisfactory and he often cursed and refused to do his sc hool work. He wa

s taking medicat

ions for impulsive behavior and attenti

on 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 grandm

other was not

cooperative with

the ALC program

and it-3-

was determined that a "home suspension" for him would not be appropriate.

The parties stipulated that Williamson County Juvenile Detention Center is operated in com

pliance with and eve

n surpasses the requi

rements of sta

te and federal law.

On April 29, 1998,Mrs. Haselden f iled a petition in the Juvenile

Court of Williamson

County alleging th

at Wayne H. had commit

ted the delinquent ac

t of carrying a weapon on scho ol prop erty.

On May 15, 1998, M

rs. 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 Williams on County. The ALC deter

mined not to prose

cute the unruly be

havior petition and the court then retired

the petition. The juvenile court found that upon his plea of "true" to the charge of car rying a weapon on school property that he was a delinquent child. The court sentenc ed Wayne to se

rve two days in t

he 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 heldon July 20, 1998. The circuit court found that Wayne had co mmitted the delinquent

act alleged, and a

ffirmed the j udgment of the juvenile court including the disposition of the case. The judgment of the circuit court was entered J uly 22, 1998 and Way

ne H. timely

appealed.

The first issue raised on appeal challenges the sufficiency of the evidence to pr ove that the appellan t possessed the weap

on on school property

with th e intent to go arme

d. The original petiti

on in the juvenile co

urt charged that: "ON OR ABOUT APRIL 22, 1998 IN WILLI AMSON COUNTY, TN, SUBJECTWAS FOUND IN POSSESSION OF A POCKET KNIFE AT PAGE MIDDLE SCHOOL. THIS OFFENSE CONSTI TU TES THE DELINQUENT-4-

CHARGE OF CARRYING A WEAPO N ON SCHOO L PROPERTY

(Class E Felony per T.C.A. 39-17-1309, et al)."

The order of the circ

uit court, followi

ng a de novo hearing

on appeal from the juvenile

court, provided in pa

rt: "The trial co

urt having had the bene

fit of the original petition, the testim ony of witne sses, argumen t of counsel for the respective

parties and the enti

re record in this ca

use finds that t

he al legations contained in said petition are proven beyond a reasonable doubt." Appealwas taken first to the court of criminal appeals but was transferred to this court because of Tennes see Code Annotated section 37-1-159.

Tennessee Code Annotated sec tion 39 -17-1 309 specifically addresses carrying weapons on school property and declares the carrying of a weapon with intent to go armed is a Clas s E Felo ny. The conduc t charged in this case, if committed by an adult, would subject such adult to criminal liability. Where

a juvenile is concerned violatio n of Tennessee Code Annotated section 39- 17-130 9 is a "delinquent act". Tenn. Code Ann. § 37-1-102(b)(9).

Neither Rule 13(d) nor Rule 13(e) of the Rules of Appel late Pro cedure envision appellate revi

ew of the hybrid created by Tennessee Code Annotated section 37-1 -133 w herein it provides in part: "(a) An ord er of disposition or otheradjudication in a pr

oceeding under this

part is not a conviction of cr ime and does not impose any

civil di s ability ordinar

ily resulting fr

om a conviction or operate to disqualif

y the child

in any civil ser

vice application or

appointment."

Rule o f Appell ate Procedure 13( d) involving appeals in c ivil actions provides that in nonjur y cases th e findi ngs of f act by t he trial court are accompanied

by a presu mp tion of correctness unless the prepondera

nce of the evidence is otherwise. Rul e 13(e) of the

Rules of Appellate Proc

edure governs appeals in criminal ac

tions under which a f

inding of guilt, either by the trial court
or by a jury,

"... sha ll be set asid e if the evidence is insufficient to suppor

t the findings by the trier o f fact of guilt beyond a reas onable doubt."

While Tennessee Code Annotated sec tion 37-1-133 specificallymandates-5-

that a finding of

delinquency is not

criminal, it is well to observe

that commo

n law, statutory and constitutional principles protect the rights of juveniles in the
same manner as they

protect the rights of

adults. In S tate v. J ohnson , 574 S.W.2d 739 (T

enn. 1978) it is said: Despite this stated purpose an

d the theory under

lying the juvenile court system, however, courts in recent yea rs have emphasized that in practical effe

ct persons involved in

juvenile proceedings may be deprived of their

liberty. Increasingly, concepts o f the criminal law, and in particular const

itutional principles d

esigned to protect the rights of i ndividual charged with crim e, have been deem

ed to be applicable to proce

edings involving juveni

le offenders. 574 S.W.2d 739,

741. Earlier the supre

me 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 at

torney judge.The court observe d: This Court unanimousl

y declar ed in Patrick v. Dick son , 526 S.W.2d 449 (Tenn. 1975): Indeed, the entire juvenil e court structu

re , despite recent renovatio ns and innovations, contin ues to constitute, in a

large measure, a junior criminal court. This characteristic

of these court s was r ecogn ized b y the Su preme Court of the United States in Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (19 75), wherein th

e C ourt points out that "there is a gap betw een the originally be nign conception of the system and its realities" a

nd observes that rec

ent cases require "that [the] courts 'eschew the "civil" label of convenience which has been attached to juvenile procee dings' and that the juvenil e process ... be candidly apprai sed." 526 S.W. 2d at 451. 596 S.W.2d 779,

784.
A delinquent child m

ay be fined, or

dered to pay re stitution, placed on probation or committ

ed to the custody of the Dep artment of Corrections. Doe v. Norris, 751 S.W.2d 834.

Tennessee Code Annotated sec tion 37-1-129(b) dem

ands proof beyond a reasonable doubt before the court may find delinquency . The "delinquent a ct" in th e case at bar is a felony when committed b y an adult. See T.C.A. § 37-1

- 102(b)(9) and T.C .A. § 39-17-1309.-6- So it is that in view of Tennesse

e Code Annotated se

ction 37-1-133, this hybrid fits directly i

nt o neither 13(d) or 13( e) of the Rules of A

ppellate Procedure.

Rule 2 of the Rules of Appella te Procedure provi

des in part: "For good cause, including the interest of expe diting decision upon

any matt er, th e supr eme court, court of appeals, or court of crim

inal appeals ma

y suspend the requirements

or provisions of any

of these rules in a pa

rticular case on m

otion of
a party or on its m

otion and may order

proceedings in acco

rdance with its discretion, ..."

Rule 13(d) of

the Rules of

Appellate Procedure provides in pertinent part "unless otherwise requir

ed bystatute, ..." review will be in accordance w

ith its provisions. Proof beyond a r easo nable 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 rea sonab le doubt in the tri al court and then subjected to any lesser standard on appeal. It may be that review under

Rule 13(d) can be m

ade compatible

with a reasonable doubt standard just as it has been made compatible with a "cle ar 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 app

ly a reasonable

doubt appellate standard whereby the trial courtjudgment

must be set aside if we find the evidence insufficient to support guilt beyond a reasona ble doubt.

Under the reasona

ble doubt standard the s

upreme court ha

s stated: When the sufficiency

of the evi dence is challenged, the relevant question for an appellate court is whether, after viewing the evidence in the light most fa vorable tothe prosecution, any rational t rie r of fac t coul d hav e foun d the e ssen tial e lement s of th e crime beyond areasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 27 81, 61 L.Ed.2d 56 0 (1979); see Tenn.R.App.P. 13(e). A jury verdict approved by

the trial judge credits the t estimony of

the witnesses for th e State and resolves all conflict in favo

r 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 7 53 (1984); State v. Hatchett , 560 S.W.2d 627, 630 (Ten n.1978 ). On-7- appeal, the State is entitle d to the strongest legit

imate view of

the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W .2d 8 32, 835 (Tenn.1978). A verdict against t he Defenda

nt remo ves the presumption

of i nnoc ence and raises a p resumption of gui

lt on appeal, State v. Grace , 493 S.W.2d 474 , 476 (Tenn. 1973), w hich the Defendant has the burd en 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 th

e allegation that he carried a knife on school prope rty. The only

disputed question is whe ther or not t he evidence establishe s, beyond a rea sonable doubt, that he

did so with the intent to go arme

d.

The mental state of

carrying a w

eapon with intent to go

armed ma

y be proved by circu mstances surrou nding the carr yi ng of t he weapon. Bennett v. State , 530 S.W.2d

788, 792 (Tenn. Cr

. App. 1975). Int

ent to go armed cannot

be presumed from mere possession

of a weapon and it is

improper to instruct a jury regardingsuch 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 incl uding the fact of the possession of the wea pon. 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 p ossessed the knife on school premises. He admitted that he had displayed a knife two days earli

er on the school bus. He acknowledged thathe knew it was wrong to have a knife in his possession at school. He explained his earlier possession of the knife b y assertingthat hewas new and wished to im press people at Page

Middle School. On April 22, he was seen displaying a k nife in the

school cafe teria. His explanation

about borrowing his cousin's coat would hardly impressany rational trier of fact.

Viewedas it must be in th e light most favor

able to the state, t

he evidence supports the finding of the tri al court beyond a

reasonable doubt t hat Wayne H.-8-

carried the knife

on school grounds with th e intent to go arm

ed.
Appellant next asserts that he was denied the right to a fair trial because the circuit court consi

dered the juvenile court's final orde

r as evidence of guil

t. The record does not support this assertion. It wa

s not the findings of the

juvenile court but the plea of "true" to the cha rge by the defendant

that was the subje

ct of the inquiry of c ounsel b y the circuit j udge. The circui t court conducted a de
novo hearing and heard testim ony from witnesses and argum

ents of counsel for four and one-half ho urs before announci ng its' findings o f guilt.
Appellant was not de

nied his right to a fai

r trial.

Th e next issue raised by Appellant involves the hearsay statemen ts b y 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 o

f the defendant in r

esponse th ere to that incriminates him. In the sequence of events Mrs. Hase

lden had brought Wa

yne to her office to inquire about the cafeter ia incid ent. He prom ptly admitte

d the incident and turned the knife o

ver to her with his explanation that he had borrowed his cousin's coat and found the knife in the p ocket. It was at

this point that Mrs. Haselden inf

ormed him of her informati on about the school bus incident two days earli

er. He thereupo

n admitted the sc

hool bus knife display incident and that he was carry

ing the knife to

impress people.

These admissi

ons under Tennessee Rule of Evidence 803(1.2) were not only admissible but were subject of no objection by

counsel. If the sta

tement of Mrs. Haselden's informant
was hearsay, the

error is harm

less beyond a re

asonable doubt and not a

basis for reversal. Rule 36(b) Rules of Appellate Procedure.

The court of crim

inal appeals has cor

rectly held: One who wishes his affairs to remain secr et should not impart informatio n concerning them to a friend, a bank

er, or even a tape recorder in the Ov al Office of the President of the United States. Once having been voluntaril y made, a dmissions against interest to a non-pr ivileg ed part y may b e us ed against the declarant whether the admissions take t

he form of an or

al or writ ten confession, a letter to a relative, a recorded conversation, a de posit slip given to-9- a teller at a ban k, or any of t he lit erall y hund reds o f forms communica

tions take. While the Fif th Amendment to the United States Constitution protects one aga inst compulsory furnishing of evidence against oneself , it does not extend to non-privileged communica

tions 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 confinem

ent is an unlawful use

of th at facility . First of all the trial court had found the defenda nt, guilt y beyond a reasonable doubt of carrying a weapon for the purpose of g oing armed on school property. The sentence ordered was a forty-eight hour detention in the juvenile detention center and the suspen sion of his driver's license for a period of one year. The court further foundthat short-term

detention in the juve

nile detention cente

r would be suitable
as a reha bilitativeeffort. Dr. Gail Colvert, director of the ALC, testified that such short-term de

tention was not punishm

ent alone but rehabil

itative in effect. Itwas thus "... a

program of tre

atment, trai

ning and rehabilitation ..." See Tenn. Code Ann. § 37-1-101. T ennessee Code Annot

ated section 71-3-501 provides: "'Detention

center' means a place or facility operated by any entity or

person, governmental or

otherwise, for

the confineme

nt in a hardware se

cure facility

of
a c hild 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 sec tion 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.

Finall y, appellant asserts that of ficials of Page Mi

ddle School failed to comply with th e Indivi duals With Disabi lity's Educat

ion Act. ("IDE

A") 20 U.S.C. sec.1400, et seq. and with regulations adopted by the Tennessee Board of Education pursuant to Tennessee CodeAnnotated section 49- 10-101(c)(1998)-10-

to effect compliance with IDEA.

This issue is rais ed for the first time in this Court and was neither presented to nor adjudicated by the trial court. It ha

s been effectivel

y waived by the appellant. Tenn. R. App. P. 36(a); Simpson v. Frontie r Community Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991).

Regardless of waiver we find this is sue to be without merit. The principal
case relied upon is the unre ported decision of the

court of appeals

in the case of I n re: Tony McCann , C.A. No. 15 8, 1990 WL 16883 (T enn. Ct. App. Jul

y 30, 1990). In that case, the court was dealing with a

de novo review of a

finding in the trial court that a ha ndicapped child was unruly. The c ourt o f appeal s reversed, holding that "... school discipline p roblem s and a student's fai lure to perform assignments m

ust be addressed wit

hin 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 Te nnessee Code Annota

ted section 37-1-102(b)(23). In this case, the defe nd ant has been found guilty of a delinquent

act under Te nne ssee Code Annotate d section 37-1-102(b) (9). This delinquent

act was a felony, not an

unruly disciplinary pr

oblem. The a

ppellant ha d been a student at Pa ge School only thr

ee days when th

e delinquent a

c t occurred.

Under Ten nessee Code Annotated section 37-1-128(c)(1), the most that
can be said is that evalua

tion for treatm

ent of special educati

on students may be undertaken by the trial court before disposition is m

ade 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 af firmed and the case is remanded to the Juvenil e Court of Williamson Count y. It has now been over a year since the adjudica

tion of delinquency and t

he sentence of

forty-eight hours detention. Rema nd is without prejudi ce to the right of the

juvenile court to revisit the disposition issue if intervening events justify either re duction of the-11-

sentence or an evaluation proce ss under Tennessee Code An notated section 37-1- 128(c)(1).

Costs are assessed a

gainst the appellant.

________________

_____________

_________

_ WILLIAM B. CAIN, JUDGE

CONCURRING UNDER SEPARATE OPINION WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ __ BEN H. CANTRELL, P .J., M.S.