Tuesday, February 23, 2010
Ind. Decisions - Supreme Court decides two today on the meaning of "briefly" in "certain drug offenses in, on, or within 1,000 feet of school property"
In Reynaldo A. Griffin v. State, an 8-page, 5-0 opinion, Justice Dickson writes:
For persons charged with committing certain drug offenses in, on, or within 1,000 feet of school property, a public park, a family housing complex, or a youth program center, the resulting penalty enhancement is precluded if both (a) the defendant was in, on, or within the proscribed area only "briefly," and (b) no member of a designated class of young people was within the designated area at the time of the offense. Indiana Code § 35-48-4-16(b). We granted transfer in this case and in Gallagher v. State, also decided today, to address the meaning and application of the statutory term "briefly." * * *In Stephan M. Gallagher v. State of Indiana, an 8-page, 5-0 opinion, Justice Dickson writes:
We conclude that the statutory "defense" provided by Indiana Code § 35-48-4-16(b) is not an affirmative defense but a mitigating factor that reduces culpability. Therefore, the evidence at trial was sufficient to raise the defense for the defendant, but it was insufficient to satisfy the State's burden to rebut the defense beyond a reasonable doubt. The State has not proven that the defendant's presence within 1,000 feet of the school lasted longer than reasonably necessary to push the moped down the street nor that his criminal activities while there would have been visible to any children if present. Nor has the State proven the presence of persons (a) under eighteen years of age at least three years junior to the defendant and (b) who were within 1,000 feet of the school property.
We reverse the defendant's conviction of Possession of Cocaine Within 1,000 Feet of School Property, a class B felony, and remand to the trial court for entry of a conviction for Possession of Cocaine, a class D felony, and for resentencing accordingly.
We granted transfer in this case and in Griffin v. State, also decided today, to address the meaning and application to be given to the statutory provisions that preclude, in limited circumstances, the penalty enhancement that ordinarily results from drug offenses committed within 1,000 feet of school property, a public park, a family housing complex, or a youth program center.
Appealing his conviction and sentence for Dealing in a Schedule II Controlled Substance Within One Thousand Feet of School Property, a class A felony, the defendant claims errors related to (1) the adequacy of the State's rebuttal of the statutory defense concerning the location of the drug sale, (2) the admissibility of a digital recording, (3) the correctness of an instruction regarding aiding and inducing, and (4) the appropriateness of the sentence. The Court of Appeals addressed and rejected the defendant's claims with respect to issues (2) and (3), and, as to issue (1), it reversed and remanded with instructions to enter a conviction for the offense as a class B felony and to resentence the defendant accordingly and thus did not address issue (4). Gallagher v. State, 906 N.E.2d 272, 277 (Ind. Ct. App. 2009). We granted transfer to consider issue (1) and now summarily affirm the Court of Appeals as to issues (2) and (3). Addressing issues (1) and (4) below, we affirm the defendant's conviction and sentence. * * *
1. Statutory DefensesThe defendant contends that he raised, and the State failed to adequately rebut, two statutory defenses. Seeking to reduce his conviction from a class A felony to a class B felony, he argues that the State failed to rebut: (a) that he was within 1,000 feet of school property only "briefly" at a time when no children were present; and (b) that his presence within the proscribed zone resulted from the request or suggestion of law enforcement. * * *
The evidence established that the defendant was present within 1,000 feet of the school and that he was located in the proscribed zone for as little as thirteen minutes and thirty seconds. During that period of time, however, the defendant was principally engaged in conduct related to unlawful drug activities clearly visible to anyone present, and thus his thirteen and one half mi-nutes in the proscribed zone does not qualify as "briefly." We conclude that the evidence was sufficient to rebut the defendant's claim to the statutory defense that he was only "briefly" in the proscribed zone. * * *
[Re (b)] The defense acknowledges that the evidence on this point was uncertain, impliedly conceding the existence of evidence supporting the jury's rejection of his claim to the defense. We decline to find that the State's rebuttal was insufficient.
Posted by Marcia Oddi on February 23, 2010 10:49 AM
Posted to Ind. Sup.Ct. Decisions