State of Tennessee v. Marlon Madison -Concurring ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
September 2, 1998
STATE OF TENNESSEE, )
)
Cecil W. Crowson
Plaintiff/Appellee, )
Appellate Court Clerk
) Appeal No.
) 01-A-01-9711-CV-00676
VS. )
) Pickett Circuit
) No. 896
MARLON MADISON, a child less than )
eighteen years of age, )
)
Defendant/Appellant. )
APPEALED FROM THE CIRCUIT COURT OF PICKETT COUNTY
AT BYRDSTOWN, TENNESSEE
THE HONORABLE JOHN MADDUX, JUDGE
JOHN KNOX WALKUP
Attorney General & Reporter
CLINTON J. MORGAN
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, Tennessee 37243-0493
Attorney for Plaintiff/Appellee
WANDA A. WHITE
P. O. Box 556
Byrdstown, Tennessee 38549
GORDON T. GERMAIN
P. O. box 515
Monticello, Kentucky 42633
Attorneys for Defendant/Appellant
REVERSED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The Juvenile Court of Pickett County found a juvenile to be delinquent
for selling marijuana to a classmate. He appealed to the Circuit Court, which likewise
found him to be delinquent, and placed him on probation with the Department of
Childrens’ Services. We reverse the Circuit Court.
I.
The undisputed facts of this case are as follows: Marlon Madison was
in the 11th grade at Pickett County High School. He was placed in an alternative
school after an incident involving possession of drug paraphernalia and suspicion of
marijuana use. Shortly after entering the alternative school, Marlon approached
another student and asked him if he wanted to buy marijuana.
The student told a school official, Vick Lowhorn, about the offer. Mr.
Lowhorn and James W. Taylor, principal of the high school, began an investigation.
They gave the student a $20 bill with which to purchase the marijuana. An exchange
was made in a classroom of the school, with Marlon Madison receiving the $20, and
the other student receiving what appeared to be four or five rolled joints of marijuana
in a plastic bag.
Delinquent proceedings were subsequently brought against Marlon
Madison in the Juvenile Court of Pickett County. After a non-custodial assessment
of Marlon’s home and family situation, and a hearing before the Juvenile Court, the
young man was found to be delinquent, and was placed on probation. The probation
terms included random drug testing, a drug education program, drug counseling, and
fifty hours of community service.
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The defendant filed an appeal for a de novo hearing in Circuit Court,
pursuant to Tenn. Code Ann. § 37-1-159. The only witnesses called at the hearing
were James W. Taylor and the student who made the purchase. The defendant
cross-examined these witnesses, but called no witnesses of his own. After the
hearing, the trial court found the defendant to be delinquent “for the act of selling
marijuana upon the school property,” and imposed the same penalty upon him as had
the juvenile court. This appeal followed.
II.
A minor may be considered delinquent if he has committed a delinquent
act, and is in need of treatment or rehabilitation. A delinquent act is basically an act
performed by a minor, which would be a criminal offense if it were performed by an
adult. See Tenn. Code Ann. § 37-1-102.
For purposes of the criminal code, marijuana is classified as a Schedule
VI controlled substance. Tenn. Code Ann. § 39-17-415. The sale of “not less than
one-half (½) ounce” of marijuana is treated as a Class D or Class E felony, according
to the actual amount involved. Tenn. Code Ann. § 39-17-417(g). Simple possession
or casual exchange of less than one-half ounce of marijuana is treated as a Class A
misdemeanor. Tenn. Code Ann. § 39-17-418. In either case, it is a criminal offense.
The appellant argues on appeal that the State failed to prove that the
rolled joints contained marijuana, and thus did not meet the burden of proof required
to find that the defendant had committed an act which would have been a criminal
offense if committed by an adult. He refers us to two cases in the Court of Criminal
Appeals, State v. Hill, 638 S.W.2d 827 (1982) and State v. Doelman, 620 S.W.2d 96(1981). In both of those cases, the court held that the testimony of a police officer
with several years of experience in detecting marijuana was sufficient to support a
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finding beyond a reasonable doubt that the substance in question was indeed
marijuana.
Although the prosecution could have easily and inexpensively met its
burden of identifying the substance sold by Mr. Madison, it failed to present any
testimony by a police officer, or by any other expert on the identification of marijuana.
The appellant insists that without such testimony, the court could not find beyond a
reasonable doubt that Marlon Madison had sold marijuana to a classmate.
We believe that the appellant is correct as to the burden of proof that the
State must carry on the underlying offense in order to support a finding of
delinquency. In State v. Johnson, 574 S.W.2d 739, 741 (Tenn. 1978), Justice
Harbison wrote:
“Although juvenile proceedings do, in many ways, partake of
civil rather than criminal proceedings, the juvenile has a right
to counsel, confrontation and cross-examination of witnesses,
the privilege against self-incrimination and the right to have
guilt established beyond a reasonable doubt. . . . We are of
the opinion that similar procedure should be followed when a
juvenile, charged with an offense which would constitute a
felony under the penal code, appeals to the circuit court for
trial de novo. . . .”
The appellant concedes that selling a controlled substance is a
delinquent act, but he does not concede that he was selling a controlled substance.
It thus appears to us that the State did not produce sufficient evidence at the trial of
this case to support a finding beyond a reasonable doubt that Marlon Madison had
sold marijuana to a classmate.
It is true that another portion of the criminal code makes it a Class E
felony to sell a “counterfeit controlled substance,” that is, a substance which is
represented by the seller to be a controlled substance, even though it is not. Tenn.
Code Ann. § 39-17-423. However, that statute refers only to illegal drugs classified
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as controlled substances under Schedules I, II, III or IV. It does not appear to apply
to marijuana.
III.
The judgment of the trial court is reversed. Remand this cause to the
Circuit Court of Pickett County for further proceedings consistent with this opinion.
Tax the costs on appeal to the appellee.
_________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
September 2, 1998
STATE OF TENNESSEE, )
) Cecil W. Crowson
Plaintiff/Appellee, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9711-CV-00676
VS. )
) Pickett Circuit
) No. 896
MARLON MADISON, a child less than )
eighteen years of age, )
)
Defendant/Appellant. )
ORDER
On the Court’s own motion the Court orders that the original opinion
filed in this case is withdrawn and the attached opinion is substituted therefor.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JUDGE