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Justices consider 'youth program center' issue

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Walter Whatley isn't disputing the fact that he was in possession of cocaine and that he should be held accountable for that.

Instead, the Indianapolis defendant argues that he shouldn't have been convicted of Class A felony cocaine possession, which is what he was charged with given that he had the cocaine within 1,000 feet of a "youth program center" or a church near his home, where police arrested him after finding more than three grams of the illegal substance on him.

Taking his case to the Indiana Supreme Court, Whatley's attorney contends the statutory phrase of "youth program center" isn't adequately defined to include a church and it's constitutionally vague, meaning he should have received a Class C felony conviction that would have meant two to eight years rather than 20 to 50 in prison.

In its unanimous May decision, the Court of Appeals reversed Whatley's conviction on grounds that he'd been near a church, not a youth program center, and directed the trial court to enter a lesser Class C felony conviction. Specifically, the appellate panel held that the church wasn't converted into a youth program center by reason of holding faith-based activities for children, such as bi-weekly Girl Scout troop meetings and youth mentoring.

"The church was not a youth program center," the court wrote. "It remained a church notwithstanding the incidental activities not solely religious in nature."

Indiana Code Section 35-41-1-29 defines a youth program center as a "building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age."

The question of this case hinges on what that definition means, and whether it's constitutionally vague on its face or when no visible notice marks a building as a youth program center. During arguments, attorneys told justices that the trial record isn't clear if Whatley knew about the church's other focuses on youth, but it appears that no signage marked the Robinson Community Church as a youth program center.

State defender Victoria Bailey told justices that it not only mattered about having a sign marking the church or building as a youth program center, but also what the activity was happening inside. She said a factual dispute could be found in the verbiage requiring a "regular or recurring" activity, and that might not mean the same thing for everyone. People need to have the opportunity to know that a facility is a youth program center, so they can comply with the law, she said.

Justice Robert D. Rucker asked if the same rationale would apply to a school - that it wouldn't be enough to just know it was a school, but that the state would have to prove that the activities inside constituted those of a school. Bailey responded that a sign designating it as a school wouldn't be enough.

"The burden is on the state to prove each and every element of the offense," she said. "The statutory definitions for these various locations... are what matters."

On the state's behalf, attorney Ann Goodwin said the Court of Appeals' logic in this case is flawed because the panel used the basis of zoning law rather than what this particular statute says.

Justice Rucker asked about whether the definition would apply to a private residence where a family regularly has neighborhood kids over to study or stay the night. Goodwin said that wouldn't be considered a youth program center because it doesn't take in a common sense approach evident in the legislature's intent.

"A church is not per se a place where children gather, although I believe you are correct that as a practical matter, if cases go forward using churches, that the state will be likely to prove that," she said.

The statute doesn't apply to private residences, she added, and there isn't a knowledge component here. The legislature meant this to be a catchall provision to protect these places, she said,

Justice Theodore R. Boehm quickly responded to her point, saying, "It seems to me that you both want to embrace the statutory definition and also run away from it. In other words, your common sense point is correct but if you take the statutory definition then the Statehouse would become a youth center.... Yet you quite properly say how would any citizen understand that this is such a building? So there is a notice component somewhere."

He went on to grill Goodwin about the state applying the law to him, if he were to conduct youth activities in his home at 3 a.m. without anyone's knowledge outside of those there. Why wouldn't that apply, he asked?

"I do not believe Mr. Whatley's position that this is a slippery slope leading to encompassing the entire zone of Marion County," Goodwin said. "There is real guidance in the statute."

Bailey said there's a real danger of interpreting this case in a way that's overbroad, and could encompass areas such as malls, arcades, private homes - that's how the statute reads and that's why it's not clear, she said.

"All of those places, under this statute, are buildings or structures that offer programs or services, she said.

Justices have taken the case under advisement.

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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