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A.W. v. State

Court of Appeals of Arkansas, Division II

January 25, 2017

A.W. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17JV-15-275] HONORABLE MICHAEL MEDLOCK, JUDGE. AFFIRMED

          Lisa-Marie Norris, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, Judge

         A.W. appeals his delinquency adjudication based on possession of drug paraphernalia and argues that the State failed to present sufficient evidence to support the adjudication. He also argues that the circuit court erred in denying his motion to suppress a statement given to his principal and a school resource officer. We hold that A.W.'s arguments are not preserved for our review and affirm.

         On 17 November 2015, the State filed a petition for adjudication of thirteen-year-old A.W. for possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-443(a)(1) (Repl. 2005). That subsection provides that a person who possesses drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance is guilty of a Class A misdemeanor. Id.

         1

          The circuit court held a delinquency hearing on 20 January 2016. Jennifer Feeny, the assistant principal at A.W.'s school, testified that she knew A.W. and that an incident occurred with him on 22 October 2015. Feeny said that she met with A.W. after he had been brought to her office for texting during a school assembly. She explained that she questioned him about what he was texting, which "led to further discussion, " and A.W. admitted taking a "medication" from another student. After that admission, Feeny searched A.W.'s backpack and found a plastic Gatorade bottle that had been reconfigured, and A.W. said that it was a bong. Feeny stated that the principal, Mr. Mitchell, was also in the room, but she did not recall whether an officer was also in the room. Feeny testified that A.W. was suspended for eight days. She also said that A.W. was a very good student and that she was surprised to find that in his backpack.

         On cross-examination, Feeny confirmed that there is an officer at the school, typically in full uniform, but again said she did not remember if the officer was present on October 22. Feeny also explained that she called A.W.'s mother immediately after talking to A.W. and searching his backpack and that A.W. was not free to leave her office while she was questioning him. After finding the bong, Feeny said, she notified A.W.'s mother and Officer Richison, who is a police officer employed by the Van Buren School District. She also said that she had A.W. write out a statement of what had happened.

         On redirect, Feeny explained that the school district has a search policy that allows school officials to search a student's bag if any issue regarding drugs or weapons is raised. She said that the policy is contained in the student handbook that both parents and students sign and return to the school.

          Corporal Duane Richison testified that he was the school resource officer at A.W.'s school. He explained that he remembered the incident involving A.W. but did not remember whether he was in the room when A.W.'s backpack was searched. According to Richison, he spoke to A.W. after the drug paraphernalia had been found, and A.W. said that he had smoked marijuana before with that bong. Richison said he could smell burnt residue of marijuana in the bottle and that the bottle had been seized by him and entered into evidence at the police department.

         On cross-examination, Richison said he did not believe he asked A.W. any questions prior to his mother's arrival. Richison also confirmed that A.W. was not read his rights while being questioned by the vice principal. Richison said that he was present when A.W. wrote his statement.

         The State rested its case, and A.W.'s counsel moved to dismiss, arguing that

the State has not shown beyond a reasonable doubt that my client is guilty of the possession of drug paraphernalia based on essentially what we claim is inadmissible evidence. So conveniently both the administrator and the officer seem not to remember whether the office[r] was present during this line of questioning that took place in the principal's office. . . . His mother was never called. No Miranda was ever given. It's very possible the officer was there in full uniform while all of this was going on. The search took place, there was questioning, there was a written statement, during none that was it-was his mother ever called. . . . Obviously he wasn't free just to get up and walk out, so I do believe it was a custodial situation. . . . His mother wasn't called until after the search, the questioning, the written statement. Judge with that we'd just argue that this is a violation of Miranda, ...

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